Solidarity obo Barnard v SA Police Services (LC case no. JS455/07 dated 24/02/2010)
The provisions of the Employment Equity Act and an employment equity plan must be applied in accordance with the principles of fairness and with due regard to the affected individual’s constitutional right to equality and the need for operational efficiency. It is not appropriate to apply numerical goals set out in an employment equity plan without considering all relevant factors. That approach is too rigid. Due consideration must be given to the particular circumstances of individuals potentially adversely affected.
A Captain in the South African Police Services claimed relief for unfair discrimination. Her cause of action was based on the allegation that she was denied promotion on two occasions for the sole reason that she is white.
During 2005 the SAPS created a new post of Superintendent of the NES, the function of which was to ensure optimal utilization of human, logistical and financial resources in the NES. Barnard was interviewed for the post together with six other candidates (four blacks and two whites). On assessment she received an average rating of 86,67 %, the highest score obtained by any candidate. The difference between Barnard’s score and that of a black candidate was 17,5 %. In its recommendation the selection panel stated that given the difference between the scores, service delivery would be adversely affected if the latter were to be appointed. The panel also stated that representivity in the NES would not be affected as Barnard was already a member thereof. The recommendation stated further: “The panel agrees that the appointment of Captain Barnard will definitely enhance service delivery”.
The panel’s recommendation was discussed at a meeting with the Divisional Commissioner the following day. The upshot was that Divisional Commissioner Resegatla recommended that post 6903 not be filled because, inter alia, “appointing any of the first three preferred candidates will aggravate the representivity status of the already under-represented Sub-Section: Complaints Investigation” and that “such appointment will not enhance service delivery to a diverse community”. The post was left vacant and in fact withdrawn. The reason Barnard was not appointed to that post was that she was white.
The same position was advertised, again as a “non-designated post” and again Barnard applied again for the post. She was again short-listed and was interviewed this time with seven other candidates, four African males, one African female, one “coloured” male and one white male. The panel recommended her appointment.
Again, a meeting was held at divisional level to discuss the panel’s recommendations. The Commissioner supported Barnard’s appointment but the National Commissioner did not approve the recommendation and withdrew the post because the appointment did not address representivity.
Barnard filed a complaint in terms of the grievance procedure in respect of her non-appointment . The written reply to her grievance stated in essence that the recommendation in respect of the latter post did not “address representivity” and that the post was not critical and further that leaving it vacant would not affect service delivery.
Barnard then referred a dispute to the CCMA, and the dispute was certified unresolved after a conciliation meeting which the Respondent did not attend.
Extract from the judgment:
 The following principles have informed my decision:
[25.1] The provisions of the Employment Equity Act and an Employment Equity Plan must be applied in accordance with the principles of fairness and with due regard to the affected individual’s constitutional right to equality. It is therefore not appropriate to apply, without more, the numerical goals set out in an Employment Equity Plan. That approach is too rigid. Due consideration must be given to the particular circumstances of individuals potentially adversely affected. In this regard the need for representivity must be weighed up against the affected individual’s rights to equality and a fair decision made.
[25.2] Obviously (and this was not an issue in the trial) individuals from non-designated groups (and perhaps from designated groups too) will be adversely affected by the implementation of employment equity plans. But both as a matter of substance and procedure implementation of employment equity plans should be effected with due regard not only to the individual’s right to equality but also to the dignity of affected individuals. This is particularly so when it comes to the application and effective use of internal dispute resolution procedures and statutory conciliation procedures.
[25.3] Accordingly, the extent to which the implementation of employment equity plans may discriminate or adversely affect individuals is limited by law. In this case at least the following considerations are relevant. First, the terms of the Employment Equity Act require the application of its provisions to be done in a manner that is both rational and fair. Second, due recognition must be given to the affected individual’s rights to equality. Third, in the implementation of an employment equity plan, due recognition must be given to the right of affected persons to dignity.
[25.4] Where a post cannot be filled by an applicant from an under-represented category because a suitable candidate from that category cannot be found, promotion to that post should not ordinarily and in the absence of a clear and satisfactory explanation be denied to a suitable candidate from another group.
[25.6] There must be a rational connection between the provisions of the Employment Equity Plan and the measures adopted to implement the provisions of that plan.
[25.7] In appropriate circumstances at least, the efficient operation of the Public Service or what is termed “service delivery” is a relevant factor to be taken into account in the implementation of an employment equity plan.
 The Respondent bears the onus to show that the unfair discrimination alleged by the Applicant is fair. This means that the Respondent must allege sufficient evidence to show, on a balance of probabilities, that its decision was fair. In order to do so the Respondent should place before the court sufficient evidence to enable it to understand this reasoning behind and justification for its decision so that the court is in a position properly to decide the matter.
Analysis of the Evidence:
 The evidence showing the reason and justification for the decision of the National Commissioner is minimal. The minute recording the decision taken by the National Commissioner at the meeting held in his office and taken by the National Commissioner reads, rather starkly, as follows:
“Recommendations do not address representivity. The posts are not critical and will not affect service delivery. Posts 4702/4701/4710 should be re-advertised”.
 In argument it was accepted by the applicant that:
[28.1] The National Commissioner of the Respondent has the final discretion to approve recommendations for appointment to all posts, including the disputed posts, which discretion must be exercised in accordance with the Respondent’s Employment Equity Plan and policy, the requirements of the Public Service Act, 1994 and the Employment Equity Act.
[28.2] Decisions of selection panels and the relevant Divisional Commissioner are recommendations which do not bind the National Commissioner;
[28.3] Affirmative action is constitutionally enshrined;
[28.4] The Respondent is obliged in law to implement its Employment Equity Plan.
 It was contended on behalf of the Respondent that section 15 of the Employment Equity Act states that affirmative action measures are “measures designed to ensure that suitably qualified people from designated group have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated level. In other words it was consistent with the Employment Equity Act for the Employment Equity Plan to seek to achieve representivity at salary levels, in this case salary level 9, rather than in a division as a whole.
 Post 4701, the post to which Barnard sought promotion, was a post at a level (level 9) where black males and females were underrepresented and white males and females were overrepresented. Barnard’s appointment to this level would have aggravated this overrepresentivity (of white males and females) and, it follows, the underrepresentivity (of black males and females) as well.
 Whilst this argument is correct, it does not exclude the need to consider related factors relevant to the implementation of the plan. For example it would surely be relevant to consider that Barnard’s promotion would have improved representivity at level 8.
 It was accepted on behalf of the Respondent, at least in argument, that where a post could not be filled by an applicant from an underrepresented category because a suitable candidate from that category could not be found, promotion to the relevant post should not be denied to a suitable candidate from another category. However, it was contended on behalf of the respondent that it was not only the applicant that was not appointed to the relevant post, but other, suitable black candidates were also denied promotion. Therefore, the argument went, no discrimination on account of race took place. But this argument loses sight of the fact that the allegation of discrimination has broader implications. It may be accepted that on the evidence and in the absence of an affirmative action policy, Barnard would have been appointed. She was not, this on account of her race. That is enough to establish discrimination. The fact that other suitable black candidates were not appointed does not change the fact of discrimination. Nor does the fact that they were not appointed, in itself, render the non-appointment of Barnard fair.
 It appears common cause that the National Commissioner could, had he so decided, have implemented the Employment Equity Plan directly by employing a suitably qualified black candidate to the post. Instead the National Commissioner declined to do so. It cannot be said, in my view, that the non-appointment of any candidate to the post was in fact a fair and appropriate method of implementing the Employment Equity Plan which was fair to the applicant. The non-appointment is no more than just that, a non-appointment. In my view, having decided not to implement the Employment Equity Plan by appointing a recommended black candidate it was unfair in those circumstances not to appoint the Applicant, a member of a designated group in terms of the Employment Equity Act and the best candidate for the job.
 Given the rather sparse information placed before this court in regard to the reasons for the National Commissioner’s decision that it is reasonable to assume that he at least did not regard the other black candidates who were recommended as suitable. Whatever the witnesses may have said is of lesser importance because they did not make the decision.
 If this is not the case, then there is simply insufficient evidence relating to the Commissioner’s reasons for his decision on record to enable me to find that the Respondent has discharged its onus to establish that the decision was both rational and fair. What is clear, and this is an important consideration, is that the National Commissioner decided not to appoint either of the recommended black candidates. Whatever his view of suitability they were recommended to him as suitable. Not to appoint Barnard in these circumstances, when she was manifestly the best and recommended as the preferred candidate, is unfair and irrational. This is particularly so because no satisfactory explanation was given for the failure to appoint a black candidate to the post.
 Quite apart from that, there is no evidence that the countervailing right of the Applicant to equality was taken into account and, if so, to what extent. Nor is there any evidence that her personal work history and circumstances were taken into account by the National Commissioner. It is apparent however that these factors were important factors motivating the recommendations of the selection panel and the Divisional Commissioner.
 In my view the failure to appoint Barnard, coupled with the non-appointment of either of the other two black and recommended candidates was not shown to be a rational method of implementing the Employment Equity Plan. The solution adopted by the National Commissioner did not, on the evidence before me show such a rational connection. If the other black candidates were deemed not suitable (the only positive and reasonable conclusion to be drawn from the evidence if any conclusion is to be drawn at all) then it was unfair to Barnard not to appoint her. If there was some other reason for the non-appointment of the two black candidates then this was not apparent from the evidence and there is accordingly no basis to find that the Respondent has discharged is onus to show fairness.
 The Respondent’s problems are compounded by what are in my view serious procedural lapses. There can be no doubt that the application of affirmative action policies will adversely affect some employees. However, both the letter and spirit of our Constitution dictate that such policies should be applied with due respect to the dignity of those affected. Against the background of those requirements the procedural lapses, namely, the failure of the Respondent to engage effectively in the mediation and conciliation procedures provided for within the Respondent and provided for by the provisions of the Employment Equity Act is simply unacceptable.
 Particularly in cases such as the present but also as a general rule, mediation and conciliation processes play an important role in preserving employment relationships and in fostering relationships based on dignity and mutual respect. It was incumbent upon the Respondent in this case to make use at least of the conciliation procedures to explain fully to Barnard exactly why she was not promoted and to attempt to reach some common understanding and even consensus. This the Respondent did not do.
 Mediation procedures which form part of agreed procedures between employer and employee and a statutory conciliation procedures such as those provided for in the Employment Equity Act are there for a purpose. Quite apart from considerations of fairness, our law requires that they be utilized fully and properly and not merely regarded as matters of form.
 The Applicant contended that her non-appointment was also unfair because service delivery was adversely affected. She gave direct evidence in this regard. Commissioner Burger also testified to this effect. That service delivery would be enhanced by Barnard’s appointment was also stated in the recommendations before the National Commissioner, that is, both in the recommendation from the selection panel and in the recommendation from the Divisional Commissioner. As against this, all that appears in the National Commissioner’s decision is that the relevant post was “not critical” and that service delivery would not be affected. It is not entirely clear what the words “not critical” mean in the present context. Certainly on the facts the Respondent saw fit to fill the vacant post at least temporarily. The post was advertised more than once. At the very least it must be accepted that the post was a necessary one.
 The Respondent’s own Employment Equity Plan notes that service delivery improvement is one objective of the plan. The National Commissioner’s instruction of 7 June 2007 referred to above is also reflective of the Respondent’s policy in this regard. Having regard to these considerations it is difficult to understand how a failure to fulfill a necessary post by any candidate at all could be said to be rationally justified by the need for an efficient Police force. However, I must state that this consideration is not to my mind a decisive consideration. I would have reached the same overall conclusion even in the absence of my comments in this regard. The considerations in regard to efficiency or service delivery do however lend added weight to the conclusion that there is an absence of a rational connection between the decision reached by the National Commissioner and the overall objects of the Employment Equity Plan.
 In conclusion, the admitted documentation together with the evidence establishes, at least on the probabilities:
[43.1] Despite being the best candidate for the post, Barnard was not promoted to that post.
[43.2] The failure to promote Barnard was a decision based on her race and constituted discrimination.
[43.3] The principal consideration applied was the numerical target at salary level 9 dictated by the Employment Equity Plan of the Respondent.
[43.4] It is not apparent that consideration was given to the mitigating effects of the Applicant’s possible promotion, namely, the alleviation of under-representation of designated groups at salary level 8.
[43.5] It is not apparent that consideration was given to the Applicant’s right to equality and dignity. There appears to have been no consideration of her personal work history and circumstances.
[43.6] As a separate conclusion and having regard to the facts the Respondent has failed to discharge the onus of showing that the proven discrimination was fair.
[43.7] The failure to promote the Applicant was unfair and therefore not in compliance with the provisions of the Employment Equity Act.
[43.8] The fact that other candidates (whether suitable or unsuitable) were not promoted does not mitigate or alter the above findings.
 Coetzer’s case, cited above, is authority for the proposition that it is competent for this court to make an order promoting Barnard. I intend to do so. However as it is the decision of the Commissioner of 27 July 2006 that formed the subject matter of these proceedings, I intend to make the order retrospective only to that date. I do not believe that a sufficient basis has been laid for making the order retrospective to any earlier date.